Oral evidence: EU Referendum Bill: Part One: Purdah and Impartiality
Oral evidence, 21 July 2015.
Witness
Sir Jeremy Heywood, Cabinet Secretary and Head of the Civil Service, gave evidence.
Chair
I invite our witness to identify himself for the record.
Sir Jeremy Heywood
Jeremy Heywood, Cabinet Secretary and head of the civil service.
Chair
Thank you very much for being with us today. You have made it clear to me that you feel there are issues of policy involved with our inquiry, and I would like to make it clear that we are not expecting you to answer on issues of policy. If you wish to defer to Ministers who are appearing after you on any issues of policy, that is exactly what we would expect you to do.
Sir Jeremy Heywood
Thank you, Chair.
Chair
We have already taken evidence from other individuals, one of whom was personally critical of you, and we want to give you the opportunity to reply to that during our questioning. To start, may I ask why impartiality of the civil service is important and how you, as head of the civil service, think that applies during a referendum?
Sir Jeremy Heywood
Obviously, impartiality is one of our core values set out in statute and it is one of the absolutely critical values of the civil service as it has been for the last 150-plus years, so it is extremely important. It is, in a sense, one of the things that distinguishes the British civil service from many others around the world. We take the non-political nature of our civil service very seriously. What does that actually mean in practice? It means that our obligation is to serve the elected Government of the day without fear or favour, clearly, but also to maintain an ability to serve a future Government of a different political complexion.
Chair
What is important about the reputation of the civil service and impartiality that you need to project to the outside world?
Sir Jeremy Heywood
I think it is very important that the civil service is seen to be not the creature of one political party, providing the advice that that political party wants to hear, and is able to provide that sort of continuity by working for Governments of different political complexions over time. It is a meritocracy and that is absolutely core to the values of the British civil service.
Chair
So how does that apply during a referendum campaign?
Sir Jeremy Heywood
I think there are two dimensions to that. First, our job is to serve the Government of the day, so if there is a Government position on the referendum, we have to support the Government in articulating that, within the constraints decided by Parliament. So on the question of section 125, if that gets resolved in one way or another, that will determine how the Government can operate and therefore what support we as a civil service can provide to the elected Government. Secondly—
Chair
Your guidance during the Scottish referendum referred to the civil service code and to impartiality, but it also referred to the relationship between the civil service and political parties. Presumably, you are concerned to maintain the impartiality of the civil service with regard to the yes and no campaigns, which in a referendum are analogous to political parties.
Sir Jeremy Heywood
I was going to say that there are two elements to this. First, our obligation is to serve the elected Government of the day, not to go off on our own with a civil service policy that is different from that of the elected Government of the day; we serve the Government of the day. But secondly, as individual civil servants, we have to be very careful that we do not through our behaviour create the perception that we have a political view ourselves. So the civil service code and the purdah guidance that we put in place during the period of the last 28 days makes it very clear that individual civil servants, particularly those at band A and the senior civil service—the most senior 40,000-odd civil servants who are in the more sensitive jobs—cannot take any part in either the yes campaign or the no campaign, whatever the debate is. They cannot take part in national political activity, which clearly involves campaigning in referendums. As individuals, they have to be very careful to maintain their own personal impartiality and not get into a position where they can be perceived to be involved in one side of the campaign or the other. So you have the two elements. We work for the Government of the day within the constraints which the Government itself has to operate, defined by section 125 or otherwise; then, separately, we are constrained by the civil service code and the civil service management code, which has not come up much in your conversations in this Committee but which is extremely important.
Chair
Can you explain that?
Sir Jeremy Heywood
The civil service management code is a very detailed document that sets out what civil servants can and cannot do. It is a much more detailed exemplification of what we mean by the civil service code. That also constrains civil servants and their ability to do anything which is construed as a national political activity, which referendum campaigning would be. Then we have the purdah guidance as well.
Q226Chair
So if a Minister is closely involved in supporting a no campaign or a yes campaign, as we have seen in previous referendums, what is appropriate for a civil servant to do to support that Minister in that role?
Sir Jeremy Heywood
It slightly depends on where we are in relation to section 125. If the Minister is making a speech in the House of Commons, setting out in a sober way the Government’s position, I would expect the civil service to support that Minister. If, however, they were working at a campaign or party event, the civil service would not get involved except in the very small role of fact-checking a speech, as we would for a party conference for example. So it would very much depend upon whether the Minister was speaking as part of a campaign or as a leader or a member of a party, or exercising a ministerial function.
Chair
So how does the dilution or restriction of purdah, or the removal of section 125, affect that relationship in the purdah period?
Sir Jeremy Heywood
It would not affect the civil service code requirements, or the civil service management code requirements. There would still be an obligation on all band As and senior civil servants to personally adhere to the civil service code, obviously, but also to avoid taking part in any national political activity. If section 125 were in place, it would constrain the Government’s ability in certain respects. No doubt we can come on to discuss that.
Chair
What difference does section 125 make to the role of civil servants in respect of Ministers?
Sir Jeremy Heywood
My understanding of the legal situation is that section 125 constrains what Ministers can do as Ministers. If Ministers are entitled, because Parliament has agreed that they can, to make speeches outside Parliament as well as, obviously, making statements inside Parliament in their official capacity, then the civil service would be able to support them, because they are the Ministers of the Crown and our obligation is to work for the Government.
Chair
Sorry, but I still do not quite understand. Section 125 is somehow debilitating of civil servants’ ability to support Ministers in the ordinary functions of Government—that seems to be the position that Ministers have been advised about. Have I understood that correctly?
Sir Jeremy Heywood
Would you repeat the question?
Chair
How does section 125 restrict the ability of civil servants to support Ministers in their function as Ministers?
Sir Jeremy Heywood
It does not directly affect civil servants; it indirectly affects civil servants. It directly affects what Ministers can do and what the Government can do, and the civil service’s obligation is to support the Government. Therefore, if the Government are constrained in what they can do, obviously the civil service is constrained in what it can do. To give a clear example, if section 125 applied, my understanding is that Ministers could make statements in Parliament, because of parliamentary privilege, and they could even issue press notices, I think, under a strict reading of the section, but they would not be able to make a speech outside Parliament advocating a particular position or dealing with a referendum question. Since Ministers would not be able to do that under section 125, obviously the civil service would not be able to support them in that sort of activity. If the Government are unable to do something, clearly the civil service cannot support them in doing it.
Chair
So what is it that the civil service is concerned that Ministers will not be able to do under section 125?
Sir Jeremy Heywood
I think the civil service’s main concern would be in relation to the normal activity in Brussels—maybe not all aspects of that normal activity, but in a typical month there are perhaps 10 or 11 ministerial Councils in Brussels. Some of those will be informal and private, others will be formal ministerial Councils in which legislation is negotiated. British Ministers—sometimes British civil servants but mainly Ministers—will be sitting in those Councils trying to secure the best outcome for Britain. Let us assume that in the last 28 days of the referendum campaign, there are 10, 11 or 12 of those Councils. We need to make sure, in the normal course of business, that our Ministers use whatever are the most potent arguments they can use to win points for Britain in those negotiations—there are minute statements and so on. We would be concerned—certainly our legal advice is very worrying on this aspect—that unless Ministers tread very carefully, they may well end up using arguments in those internal EU discussions that could be construed by anyone litigious as bearing on the question of the referendum. We would have to be incredibly careful about what language was used by Ministers in the ordinary course of business in Brussels dealing with these 10 or 11 ministerial Councils, or responding to ECJ judgments or to Commission proposals, in the 28 days of the controlled period. In a normal referendum—a non-EU referendum, if I can call that normal—the Government have some control over the agenda, so not much will happen in the 28-day period, or we can make sure that there are no policy initiatives that bear on the referendum itself, so the issue will not arise. On European business, the Europeans control the agenda, so those meetings will happen even despite the fact that we have our referendum going on, and we will have to have representation there. We might strike lucky and have a 28-day period in which no issue of significance is discussed in any of those 10 or 12 Councils, but in the normal course of European business, whether it is a migration issue, a bailing out Greece issue or a budgetary issue, there will be really contested questions being debated and negotiated in those Councils. Ideally, we would not want Ministers to be constrained in the negotiating points they could make; we would want them to be able to defend Britain and the national interest as best they can.
Chair
The advice we have taken is that section 125 can be interpreted quite widely, and that the Government’s interpretation is taking an extremely draconian view. For example, the issuing of press notices is exempted under subsection (3)(d). The Government could issue any press notice about any Council meeting or European Court of Justice judgment, as long as it did not fall foul of the provisions on material that “is designed to encourage voting at such a referendum” or that “puts any arguments for or against any particular answer to any such question”. It seems to me that that is quite a broad exemption.
Sir Jeremy Heywood
That is an important exemption, I agree, and different lawyers will disagree on this, but the Government lawyers that we have consulted and Ministers have consulted and the external counsel that we have consulted think that it is open to a number of different interpretations. There is certainly a very arguable case that, depending on the language being used and the issue being discussed, Ministers could fall foul of this.There is a very clear legal risk of that.
Chair
We will come back to that later in further questions. Can I just ask about code? Do you want to ask about the code, David?
Mr David Jones
No, I want to follow up on the previous answer. Section 125(1) relates to the publication of material. What do you have in mind in relation to the publication of material? You mentioned discussions in the European Council and so on, but publication of materials is a rather different matter.
Sir Jeremy Heywood
Again, different lawyers will take a different view on, for example, whether all speech is excluded. Some lawyers take one view, some take a different view. As you will know very well from personal experience and so on, often in Council discussions of the sort I have been talking about, you register the UK position by way of a minute statement, or you publish a document that is not technically a press notice, but is a statement of the UK’s position set out in writing. Does that count as making something available to the public at large in whatever way—whatever the phrase is in section 125? Clearly, different lawyers will take different views. As head of the civil service and Cabinet Secretary, I am very nervous about putting our Ministers into a position where they have to tread so carefully in the last 28 days because they could be at risk all the time of someone vexatious coming along and saying, “Actually, that falls on the wrong side of the line. Let’s have a legal suit against the Government.” It would be a really terrible thing if a very significant referendum for this country were to be interrupted by litigation, so we err on the side of caution. But I have to say that our legal advice has been that this is a “highly problematic”—I think that was the phrase used—section, with real uncertainty created. Frankly, I think the Government’s view was that you cannot allow that sort of legal uncertainty to hover over the final stages of a hugely significant referendum.
Chair
Can you give an example of the kind of material that you would need to exempt?
Sir Jeremy Heywood
Well, I have just said: the sharpest case would be where a Minister was negotiating on a highly contentious issue, which everyone on this Committee would agree was vital to the UK national interest, and felt hobbled by being unable to make any points about its importance for the referendum and so on, at precisely the moment when the whole of the British media and body politic is focused on that question. There needs to be some sort of recognition that business in Brussels has to continue as usual during the last 28 days. I do not think there was ever any intention to catch that sort of business. My understanding of section 125 is that it was intended to stop campaigning and promotional material—that sort of thing. The Government have no intention of using the Government machine in the last 28 days of the referendum period for promotional material or campaigning, but there is a risk that the provision will catch normal business in Brussels when Ministers are fighting our corner.
Mr David Jones
I understand that, but is it necessary to disapply the entirety of section 125 for that purpose?
Sir Jeremy Heywood
Of course, you could come up with an amendment to it, if it was sufficiently clear that it would serve that purpose. That is an issue that Ministers have said that they want to discuss with colleagues in the House and so on and come forward with some amendments. I do not think it is an all or nothing if the issue is to protect business as usual. Of course, Ministers have articulated a second argument about the reasonableness of setting out in a sober and balanced way an explanation of why the Government have reached the position they have. That is a different argument from stopping business as usual from being interrupted in Brussels. The two arguments are being used.
Oliver Dowden
One argument that has been put to the Committee is that there has been enhanced judicial activism since the legislation was passed, about 15 years ago. Do you or Government lawyers have an opinion on whether that is a genuine risk—that there is a greater risk now than there would have been 15 years ago of some of these issues ending up in the courts, and the courts having to make a decision?
Sir Jeremy Heywood
To be honest, we have not done a precise calibration of 1999-2000 versus now in terms of activism, but there is a general sense, which has definitely been in the minds of our lawyers, that in this day and age—2015, 2016 or 2017 as it may be—to have that amount of legal uncertainty hovering over what everybody would acknowledge is important Government business is very unsatisfactory. Leaving that amount of uncertainty would mean either that we run the risk of the referendum in its dying days being distracted by high-profile legal suits, or that Ministers will effectively have to neuter themselves or err dramatically on the side of caution in business-as-usual negotiations in Brussels, which may be on really important issues.
Chair
The code, as PASC recommended in one of its last reports at the end of last term, refers to impartiality in elections, but it does not refer to civil service impartiality in referendums. What is your reaction to the proposal that the code should include a mutatis mutandis reference to referendums and yes and no campaigns as it does to elections and political parties?
Sir Jeremy Heywood
That is something I am considering with our Ministers. We have not yet come to a final view. Personally, I think it will be belt and braces. I do not think it is necessary, because the code is very clear that impartiality is a requirement in referendum periods, general election periods and any other periods. That is a requirement of being in the civil service; it is one of our core values, as we started this hearing by underlining. If I have spotted a lacuna in the whole system, it is that the civil service management code probably ought to refer explicitly to referendums. It is a much more detailed document, and it would be worth looking at section 4.4, which sets out the definition of national political activities in quite some detail. If we are going to make any change, I would want to make it explicit—it is implicit already—that that also refers to referendums.
Chair
That would seem to make the case for having it in the leaflet that all civil servants will read, so it is more public. And it is, of course, recognised by statute.
Sir Jeremy Heywood
Let’s see what Ministers decide. I personally do not think it is necessary, but nor do I think it would do any great damage. That is something we need to discuss with our Ministers. Just to be very clear—
Chair
If there is a relaxation of section 125, how will you reinforce in the public’s mind the idea that the civil service is not being dragged into a closer relationship with one campaign or the other, which may be supported by Ministers?
Sir Jeremy Heywood
What we would have to do is simply publish the purdah guidelines when we got to that moment. You will be aware of the purdah guidelines we put in place for the Scotland referendum. They are well understood by the civil service and Ministers. I do not think they are necessarily widely known by the general public.
Chair
I make the point again that in those guidelines you refer to political parties in respect of the referendum, but that is because you cannot refer to what the code says in respect of referendums and yes and no campaigns. Wouldn’t that be a better way of expressing what you meant?
Sir Jeremy Heywood
I think we make it quite clear that civil servants cannot take part in national political activity, and it is pretty obvious that a national referendum on whether we should stay in the EU or not is a national political activity. As I say, the point at which to make that clarification is the civil service management code. We are definitely looking at it. We are not resistant to the spirit, because we totally agree with you. Civil servants’ duty of impartiality has to be there throughout, including during referendum campaigns.
Ronnie Cowan
Good morning. The civil service, including yourself, attracted criticism for not being impartial during the Scottish referendum. Do you think some of that criticism was fair, with hindsight?
Sir Jeremy Heywood
No, I don’t, actually. I welcome the fact that the predecessor Committee to this one congratulated the civil service on the way it conducted itself during that period. It was clearly a period of exceptional pressure, when you have a unified civil service.
Paul Flynn
I think we’d like to revise that position now if we did say that. We unanimously criticised you for your lack of impartiality on the Sir Nicholas Macpherson affair, if you remember.
Sir Jeremy Heywood
I wasn’t head of the civil service then. I think you had a thorough hearing with Nick Macpherson and Bob Kerslake and discussed that. We can go back over that if you wish but there was no code complaint to the Civil Service Commission in respect of any civil servant’s behaviour during that period. It was a period of considerable stress and strain in which we tested to the limit what we meant by having a unified civil service. Obviously, the civil servants in Scotland worked for their elected Government and the civil servants down here worked for our elected Government, as is required under our impartiality codes and so on. Co-operation between the civil servants in Edinburgh and south of the border remained good. Basically, the rules of purdah were adhered to.
Ronnie Cowan
Can I—
Chair
Sorry, forgive me—were you actually notified that Sir Nicholas Macpherson was going to publish his opinion in advance?
Sir Jeremy Heywood
No, I wasn’t. I wasn’t head of the civil service then.
Tom Tugendhat
As an individual, though, what was your view?
Chair
What would your advice to permanent secretaries be about publishing their advice?
Sir Jeremy Heywood
My advice to permanent secretaries will always be that you should only consider publishing your advice to Ministers in truly exceptional circumstances. I share the view with you, Mr Chairman, and the Committee, that civil service advice on the whole should remain confidential. That is definitely my view in relation to freedom of information and other aspects as well. But there will be, as there have been over many years, very exceptional cases, where civil servants—
Chair
Just to clarify, you were Cabinet Secretary at the time?
Sir Jeremy Heywood
I was.
Chair
But you were not informed?
Sir Jeremy Heywood
No.
Paul Flynn
In the interests of accuracy, compared to the fantasy account you have given of the views of this Committee, what we actually said in our report—and I have it before me—was that the “advice should not have been published. Its publication compromised the perceived impartiality of one of the UK’s most senior civil servants.” That was our conclusion.
Sir Jeremy Heywood
That was your conclusion on the Nick Macpherson memo. I totally accept that. I wasn’t suggesting for a minute that you didn’t criticise that. I think you also made a general point that, in general, the civil service comported itself well during that period of stress.
Paul Flynn
Since then, we have had the other affair of a civil servant leaking an untruth with the co-operation of a Minister who lied about it and a protracted inquiry—in spite of a letter you sent me saying that it was going to be done very urgently—that wasn’t reported until after the election. Don’t you think this means that the view of you, and your lack of impartiality, described by David Owen, is justified now, and you have shown a persistent lack of impartiality over the years since you were employed by Tony Blair?
Sir Jeremy Heywood
I completely and utterly reject that, from start to finish. I don’t know where you want to start. Do you want to start with David Owen, or do you want to talk about the Scottish investigation, which—unlike many leak inquiries—actually got to an outcome? I think that was a very good inquiry, but, in all fairness, it was impossible to complete it until after the general election, because it was impossible to speak to Alistair Carmichael until then. I will go through these points one by one, if you like, but I utterly resent the allegation that I am not capable of upholding the impartiality of the civil service.
Paul Flynn
The effect of the untruth that was perpetrated by the civil servant, with the encouragement of the Minister—who actually lied to “Channel 4 News” and said that he had no knowledge of it—was that the damage was done during the election period. The result of your inquiry was not published until the election was over, when it could have had a very strong effect on that.
Sir Jeremy Heywood
That was correct.
Paul Flynn
And you described it as a couple of simple meetings that took place. It wasn’t a very elaborate inquiry that was required. Surely it could have been completed before the election?
Sir Jeremy Heywood
No, I promise you that it could not have been. We tried our very best to complete it before the election. But you have to give people an opportunity to give an account of their own behaviour; you can’t just publish leak inquiry investigations without talking to all the key people who have been accused of things. It is contrary to all due process.
Paul Flynn
Does the fact that you defend—and continue to defend—the conduct of the civil servant involved call your impartiality into question?
Sir Jeremy Heywood
I am not defending the conduct of the civil servant involved. I am basically defending myself, which is to argue that I think I completed that inquiry successfully, as fast as it could possibly be done, while respecting due process.
Chair
Can we go back to Mr Cowan, please?
Ronnie Cowan
Perhaps we can accept that mistakes were made and things could have been done better. My question is—given that we are looking towards the EU referendum here—is there anything that the civil service is going to recommend to Ministers or recommend within their own organisation that changes from the previous referendum? Are there ways to tighten these guidelines to make sure that this does not happen again?
Sir Jeremy Heywood
No, I don’t think so. I think the civil service behaved fully consistently with the purdah guidelines and with the code during the last referendum. Obviously, we would have to adjust the guidelines if section 125 were in or out, because there is a difference in what the civil service could do. If you look at the Scottish purdah guidance, a lot of it hangs off the section 125 requirements, so if they are amended in some way, we would have to amend the guidance. By and large, I think the rules of purdah are well understood by the civil service and, indeed, by Ministers, and they are strictly adhered to. I have not a shred of evidence from David Owen or anybody else that they have not been properly adhered to.
Ronnie Cowan
Is there not a slight danger that if we believe everything is absolutely perfect, we stop looking at it and therefore do not improve it?
Sir Jeremy Heywood
I am not saying that everything is perfect. Of course, if there are—
Ronnie Cowan
So what can be improved?
Sir Jeremy Heywood
I am saying that if section 125 requirements are changed in some way, we would of course take that on board and listen to the conclusions of this Committee and others, but I do not believe that the current system is broken. I think the system works very well, and civil servants know very well that during a period of purdah, they have to adhere to the rules.
Chair
Forgive me for harking back to previous evidence sessions, but given that you and the civil service managed to interpret the Spads code of conduct, which bans canvassing, as meaning that they could canvass, does that not suggest that these codes are subject to fairly wide interpretation in practice?
Sir Jeremy Heywood
There is an amount of discretion.
Chair
How can we have faith that the letter of the code will be enforced when special advisers were instructed that they could breach their contracts of employment?
Sir Jeremy Heywood
We just have a difference of view on that, Mr Chairman. We had an exhaustive discussion about that at our last session in the last Parliament. We just took a different view from you on what special advisers should be allowed to do in their spare time with no increment to official resources.
Chair
Is it not therefore better to have these things reinforced by statute?
Sir Jeremy Heywood
No, I don’t think so. Bringing statute into play and trying to interpret case by case, hour by hour, what activity is allowed during a general election campaign is a recipe for chaos, frankly.
Tom Tugendhat
In fact, what you are saying is that instead of having a debate in Parliament, it should be decided by unelected officials.
Sir Jeremy Heywood
Not at all. Parliament is entirely the right place to debate section 125.
Tom Tugendhat
But if you are saying that what special advisers can or cannot do should be decided by unelected officials, rather than by elected representatives, you are effectively dividing what should be decided quite clearly between the elected and the unelected.
Sir Jeremy Heywood
No. If the Government or Parliament decide that they want to put the special adviser code or the ministerial code into statute, that would obviously be a different issue, but I thought we were talking about the interpretation of the current codes and the implementation in practice of the civil service code and purdah guidance. You need a degree of real-time flexibility to implement that hour by hour, because many different decisions come to be made—particularly in the first few weeks of an election campaign. Me and my team are having to deal with lots of different, quite detailed queries all the time on that. Putting that into statute and making it justiciable in some way would be a nightmare, frankly. I do not think there is any evidence that it is broken. The two cases that have been cited came before the purdah period in Scotland. They were about how you comply with the civil service code generally—nothing whatsoever to do with purdah, and ditto the David Owen complaint, which was a month or so before purdah started.
Tom Tugendhat
Sir Jeremy, can you give any examples of where you have had to prevent Ministers from using the machinery of government in an inappropriate way in previous referendums?
Sir Jeremy Heywood
I am not going to go into detail about my advice to the Prime Minister and other Ministers on that sort of issue, but that is my job; my job is to make sure that Ministers get proper advice on what is permitted and what is not.
Tom Tugendhat
So though you are not willing to give examples, there are examples?
Sir Jeremy Heywood
There is a constant dialogue with Ministers about what the right use of official resources and so on is. It is always a very good-tempered and sensible debate.
Chair
Can you give an example of where you have had to instruct a Minister that he cannot do something under purdah that has inhibited the proper functioning of government?
Sir Jeremy Heywood
I do not instruct Ministers. I am a civil servant.
Chair
I beg your pardon. I will use a different word. Can you give an example of where you have had to counsel Ministers about the meaning of purdah and how it restricts them from doing something that is the proper function of government at any time?
Sir Jeremy Heywood
I am going to give you some generic examples. These include the use of official cars, or the extent to which civil service resources can be used to provide briefing for events, or the issue of when appointments take effect. Do appointments take effect when the panel makes a decision or from the point when they are announced? These issues are the nitty-gritty of government in practice.
Chair
Using that example, if a Minister instructed a civil servant to provide a car or to use the facilities of the departmental press office for an improper purpose during a purdah period, what would happen?
Sir Jeremy Heywood
If it was brought to my attention, I would seek to rule that it was not possible. It would be contrary to purdah. That would generally be the end of the matter, but if a Minister persisted—and we are talking very hypothetically here—then obviously in extremis I would have to raise it with the Prime Minister, who stands behind all the purdah rules. In the end, the authority of these rules comes from the Prime Minister’s support for them. But it does not come to that because people respect the purdah rules, and do not want to be in that position. It would damage people’s reputations to be seen to be using official resources during an election campaign.
Chair
How often do you think that the conversation has occurred: “I’m sorry, Secretary of State, we are in purdah and we can’t do that”?
Sir Jeremy Heywood
I wouldn’t want to put a figure on it, but most of the conversations take place with private officers or with other permanent secretaries’ officers. They happen quite frequently, because it is not crystal clear in each case. There are quite a lot of grey areas and so on, where judgment is needed. That is why it is best to keep this flexible, in the hands of people who have been used to doing it for a long time.
Paul Flynn
Another point made by David Owen last week was that he thought that you had some influence on the delays of the Chilcot inquiry. As this matter is now coming up again, as the war drums are beating again, and we are being encouraged to send our troops into a four-sided civil war in Syria, don’t you think that it is a matter of even greater urgency that we know now why Parliament was misled into sending 179 of our British soldiers to their deaths in pursuit of non-existent weapons of mass destruction? I understand that you were working for Tony Blair at that time, between 1999 to 2003, as his personal secretary. Is there any possible influence you can exert to accelerate the publication of the inquiry’s conclusions? Or are you washing your hands of it altogether?
Sir Jeremy Heywood
No, I am not washing my hands of it, but it is an independent inquiry and the timetable is not in my hands. Having said that, on behalf of the Prime Minister, I have repeatedly offered Sir John extra resources and so on, such as extra legal resources. At the Prime Minister’s request I saw him again recently. We had a private meeting at which I repeated that request. I just know that John Chilcot will complete this report as soon as he possibly can. He is as aware as everybody else of the importance of getting this done, and done quickly.
Paul Flynn
It has been six years now, and this is important. We have not yet started the inquiry into why we went into Helmand province in the belief that not a shot would be fired, which resulted in 450 deaths. Unless we as a Parliament can find out why we made these terrible blunders in the past, the House is not going to take decisions to send troops into what might be legitimate new wars. Is there anything you feel that you can do, or any influence you can bring to bear?
Sir Jeremy Heywood
The bit for which I was responsible was to consider in good faith the declassification request. I have done this as expeditiously as I could, and I have concluded on the side of transparency. We have repeatedly offered the inquiry further resources, but its members say that they don’t need them and they are doing it as fast as they can. It is an independent inquiry, and I cannot do any more than that. Everyone shares your frustration about how long this has taken from the Prime Minister downwards. That includes Sir John Chilcot, by the way.
Chair
This must be the last question on Chilcot.
Paul Flynn
Okay. I do not know whether you recall that in 2005, this Committee recommended a form of parliamentary inquiry, which would be under the control of Parliament. What we seem to have with Chilcot is a monster of an inquiry with an almost infinite capacity to be delayed by the guilty, including possibly your old boss, so that they can carry on and live their lives prosperously afterwards, and possibly take places in the House of Lords next month. Don’t you think that we need to look at a different form of inquiry that is under democratic control, and can be speeded up and not endlessly delayed?
Sir Jeremy Heywood
I don’t think that anyone is deliberately trying to slow down the inquiry. I really do not think that that is the position. I genuinely don’t think that that is the position at all. I totally take the point that, once the inquiry has completed its work, we need to take a long hard look at why it took so long and what lessons we can learn from that, but not in a way that interrupts the last phase of the inquiry. The inquiry just needs to get its head down and complete its work.
Paul Flynn
Lord Owen also mentioned the Government’s conduct in sending out 2 million letters to businessmen in April, just before the European election, that contained, among other things, a Government mantra, a Conservative party slogan. He thought that that move should not have been allowed. Do you agree that that was a mistake?
Sir Jeremy Heywood
Not at all.
Paul Flynn
Were you involved in it?
Sir Jeremy Heywood
I was involved in approving it, actually. I thought it was sensibly worded. Let’s be clear: the employment allowance was introduced by the previous coalition Government but had cross-party support. It was not a contentious policy. It was a month or so before purdah started, and that was European and local elections, not national elections. It was another way of communicating with small businesses, in an attempt to raise the take-up. This allowance was not automatically given to people; they had to claim it. Previous experience had been that, without proper marketing, there would not be a very high take-up. Every attempt was being made through marketing, use of intermediaries and this new technique of getting the Prime Minister to write personally. An attempt was made to try a different technique, relatively cheaply compared with other marketing devices. I think it cost around £400,000, for which a mailshot was done for 2 million people. The evidence I have seen recently is that it was actually quite successful. It was much more cost-effective, for example, than TV advertising or expensive marketing.
Paul Flynn
Apart from the timing of the letter, don’t you accept—
Sir Jeremy Heywood
The timing of the letter was determined by the start of the financial year. That was 5 or 6 April and it was sent to coincide with that, not with purdah.
Paul Flynn
Would you accept that politics is now conducted in subtle ways, such as propaganda by mantra? Certain phrases are used over and over again, as was demonstrated in recent coverage of this House by Michael Cockerell, where Conservative MPs were told to include something about the economic plan in every parliamentary question. A long list was given of this great litany of people repeating the same words. Those words appeared in the letter. Don’t you think that is political abuse of the Government’s position, which you approved of?
Sir Jeremy Heywood
Not at all. I looked again yesterday at the letter. I don’t think it is written in a partisan way. It is not a political letter; it is not a partisan letter.
Paul Flynn
It contains a party political slogan.
Chair
For clarification, Lord Owen was concerned about the timing of the letter, less concerned about its content.
Sir Jeremy Heywood
The content is completely unexceptionable, I think. Any reasonable, fair-minded person—not steeped in politics anyway—would look at that letter and think it a perfectly reasonable letter to write. The great news, which the Committee should be interested in, is that it succeeded in raising take-up of a cross-party-supported allowance. What is not to like about that?
Chair
Final question, Mr Flynn.
Paul Flynn
This is my final question. The general judgment of you by Lord Owen was “I think his capacity to make a judgment between the interests of a Prime Minister and the wider Cabinet, for example, or between the interests of Ministers collectively and civil servants is open to question.” He went on to say that your whole career “has been spent in the hothouse atmosphere of politicians’ private offices and three successive Prime Ministers”. He went on to say that you were private secretary to Tony Blair. Don’t you think that you have been so marked, and that your character has been shaped in such a way, that you are not really fit to carry out your duty in an impartial manner now?
Sir Jeremy Heywood
No, I don’t think that is the position and I don’t think that is the Prime Minister’s view or that of the previous Prime Minister. I have served to the best of my ability successive Governments of different political complexions and have had no complaints on that score. I believe I can do the job very well. I have never met David Owen. If he has those sorts of concern about me, I wish he would come and talk to me about them. He has no idea what I do day to day.
Paul Flynn
I think we will make our own judgments on that. Thank you.
Oliver Dowden
I will return to section 125. Mr Lidington, the Europe Minister, gave evidence that it provides a wide-ranging ban. I know that you have talked about normal activity in Brussels, but could you provide further details in relation to that or, more broadly, other activities that could be caught by section 125?
Sir Jeremy Heywood
As a civil servant, the main area I am concerned about is the inability to do normal business on behalf of the country in Brussels. Clearly, the Prime Minister has also drawn attention to a number of other problems. In particular, while the Government would be able to set out in a clear, balanced way the Government’s position in Parliament, because of parliamentary privilege—and probably also by press notice, as a result of the exemption there—they would not, for the last 28 days, be able to set out in a clear way the reason why they have taken the position that they have in other forums. I think that the Prime Minister, David Lidington, the Foreign Secretary and others do not believe that that is a very sensible way of doing something. That is very different from campaigning though, just to be very clear. The distinction that has been drawn is between setting out in a balanced and sober fashion the Government’s position in a variety of forums, not just in Parliament, and paying, using taxpayers’ money or using civil servants to write campaigning literature and just being part of the campaign. That is not what Ministers want to do—that is what the campaigners and political parties are supposed to do. I think that is the distinction that they have been seeking to draw with this.
Oliver Dowden
Do you think that problem is best dealt with by a disapplication of section 125 or amendment of section 125?
Sir Jeremy Heywood
The Government’s opening position was that disapplication was the right thing and to handle the rest by the purdah guidance. If the House would like a different approach, I think that Ministers have agreed to take away that issue and consider whether an amendment would strike a better balance. That is a very open discussion.
Oliver Dowden
What is your view?
Sir Jeremy Heywood
I think that either could work. I believe that guidance can be very potent if it is fully adhered to, but if the House and the Government take the view that amending section 125 would be better, fine. Obviously I am more interested in the outcomes and that the normal business of government is not fettered by an unintentional piece of legislation.
Oliver Dowden
Just on these outcomes, can you provide further clarity on the legal advice that you have received on this matter, or indeed what precedent this advice is based on?
Sir Jeremy Heywood
I cannot give you full details because we do not publish our legal advice, as you know. The advice that we have had from external counsel is that, as drafted, section 125 is incoherent and highly problematic for the conduct of normal Government business, at least potentially. Legal views can differ on this, the issue is whether there is enough legal doubt that a litigious person, in today’s modern world as it were, would have a reasonable cause for action that could then complicate the last 28 days of the referendum campaign in ways that no one, I think, would want.
Oliver Dowden
Where does that incoherence lie? What is the source of the incoherence?
Sir Jeremy Heywood
Incoherence in relation to what it is applied to—why press notices but not other forms of written correspondence? Is it promotional material or any material? It is incoherent within the substance of the section, it is inconsistent. But different people take different views. I have to say that, up to now, it has not been a huge problem. It is more of a problem in relation to a European referendum because the timetable of what the Government will get up to in the last 28 days is not under our control. We will find ourselves having to respond to things that are sprung upon us by emergencies in Brussels or somewhere else in Europe or by the steady, routine pattern of EU Councils. During the Scottish referendum, the UK Government would not, of course, come out with some new policy on Scotland in the middle of that referendum campaign. We are in control of our own business—
Hon. Members
They did.
Sir Jeremy Heywood
No they didn’t.
Ronnie Cowan
They gave the vote.
Sir Jeremy Heywood
The vote was done by party leaders—it is a very good example. It was not permissible within the purdah guidelines for the Government to do that as the Government with civil service support.
Chair
And you would not expect something similar to be permissible under the purdah period, however it is constituted, whether under a code or management guidance, you wouldn’t expect the Government to announce a change in the terms of membership of the EU halfway through the purdah period?
Sir Jeremy Heywood
No, I wouldn’t.
Chair
So that would be contrary to purdah? They would not be allowed to do that through the civil service?
Sir Jeremy Heywood
Yes, we expect Ministers to observe a period of restraint during a period of purdah.
Ronnie Cowan
So, for clarification, they would not be allowed to do that standing in the House of Commons, but would they be able to do that back in their constituencies talking to their constituents?
Sir Jeremy Heywood
They can do something as party leaders or as part of a campaign but without civil service support.
Ronnie Cowan
So what is the point? Surely the Prime Minister’s view is the Prime Minister’s view whether he is standing in the House of Commons expressing it or whether he is back in his constituency expressing it. It still carries the same weight.
Sir Jeremy Heywood
I am just explaining the law and what the role of the civil service is. The civil service cannot support the Prime Minister if he is acting as leader of the Conservative Party or as part of the campaign. That is my responsibility—what the civil service can and cannot do.
Kate Hoey
Sir Jeremy, I am sorry that some of us left just after you had started, it was not to do with you, we wanted to make sure that Bill Cash was re-elected as chair of the European Scrutiny Committee. You mentioned you were concerned about the inability to do normal business in the EU. I have just seen my first documents from the European Scrutiny Committee—what is apparently normal European scrutiny business. If we have such a good relationship with all our other European Union members and we are having a referendum on a hugely important issue about leaving or staying, do you not think that we might expect them to behave in a way that would mean their not trying to put anything through that would cause Her Majesty’s Government difficulty during that election period?
Sir Jeremy Heywood
It is possible that they might exercise some constraint, but that is not within our control. Often, it is not programmed business that causes difficulty; it is unexpected developments. Time and again, we find a new proposal that we have not heard of before that has to be responded to immediately. We would not want to be in a position where it was illegal for a UK Government Minister to set out a defence of the UK’s position for fear of falling foul of purdah. That is the risk we are trying to guard against.
Kate Hoey
Do you really think the public will understand that? If the public were listening in—presumably, some of them are—do you really think they would understand that purdah can operate normally in general and other elections and referendums, but somehow, because it is the EU, we have to do things differently? Do you not think that they will find that a little strange?
Sir Jeremy Heywood
I would not presume to speak about what the public would think, but I think the public would expect that the last 28 days of a referendum on the European Union should be not blighted by legal challenges left, right and centre. They would expect Parliament, the Government and the civil service to have sorted themselves out so that we could focus purely on the issue at hand, not on legal suits from left, right and centre trying to take advantage opportunistically of business that we have to transact because we have no alternative, because the agenda is not under our control.
Tom Tugendhat
During the purdah period in the 2010 general election, you will remember that there was a certain frisson about the banking crisis, and yet Mr Darling was able to conduct his business as the Chancellor of the Exchequer, admittedly in consultation with shadow finance Ministers. Do you feel that purdah hindered his ability to act?
Sir Jeremy Heywood
As we discussed earlier, purdah is not completely binding. It is a flexible concept in the sense that, if there is emergency business and everybody agrees it is emergency business—if you can find a way of ensuring the Opposition are happy with that—you can transact the business. You have to give yourself a little wiggle room in the national interest.
Tom Tugendhat
You do not feel that section 125, which was then binding on Mr Darling, actually hampered his ability to use Government resources to transact the business of government, in this case with the IMF and other world leaders?
Sir Jeremy Heywood
No, it did not. The problem in relation to section 125 is not how the Opposition, the civil service or Ministers might respond, but that some third party might decide to litigate.
Tom Tugendhat
Indeed. But you do feel that the same Act, which did not impact on Mr Darling’s ability to act as Chancellor in that extraordinary crisis, would impact on Mr Lidington’s ability to negotiate fish quotas.
Sir Jeremy Heywood
I am not saying it would. I am saying there is a real risk according to our legal advice.
Chair
To be clear, statutory purdah does not apply in a general election. You are saying that if section 125 had applied during the general election, it might have caught those negotiations. Is that your argument?
Sir Jeremy Heywood
I am not going into a hypothetical situation.
Chair
But that is your whole argument, isn’t it? If section 125 was applying, it would catch things like those negotiations.
Sir Jeremy Heywood
I do not quite see how section 125 would apply in that situation, to be honest.
Chair
It obviously does not apply statutorily in a general election, but you are saying that if the same issue arose under an EU referendum and section 125 was in force, that kind of discussion about restructuring and rescue plans for the euro might be caught?
Sir Jeremy Heywood
Yes, indeed.
Chair
That is your argument.
Sir Jeremy Heywood
That is my entire point. If the debate that we have had over recent days about whether Britain should contribute to the Greek bail-out started to come up in the last 28 days, of course Government Ministers would want to take a strong line on that.
Chair
You are saying that section 125 could impair Ministers’ ability to deal with that crisis.
Sir Jeremy Heywood
That is the advice that we have had.
Oliver Dowden
I just want to explore the potential impact of the disapplication of section 125. Would the civil service code require an amendment in those circumstances, or would additional guidance be required in the event of a disapplication?
Sir Jeremy Heywood
No, I think the civil service code covers the situation perfectly well. There is, perhaps, a belt and braces case for changing the civil service management code to make it absolutely clear that when we are talking about national political activities, we are talking about referendums as well as election campaigns and so on. I would have no difficulty putting out very clear purdah guidance, even if section 125 was not in place. I think that would constrain the work of the civil service in the ways that you would want.
Oliver Dowden
Do you think then that the civil service code of conduct restrains the conduct of civil servants more than the application of section 125?
Sir Jeremy Heywood
Absolutely. That is the core thing as far as the civil service is concerned. Having said that, if section 125 were disapplied, the Government would be able to do a greater range of activity than if section 125 were in place. Therefore, the role of the civil service would expand to support whatever that Government activity was. Our job, as civil servants, is to support the elected Government. If Parliament has allowed the Government to do certain things, we cannot just down tools and say, “Sorry, we are not going to support you on that, even though it is perfectly legal and Parliament has agreed you should do it.” Our job is to support the Government; that is what we are here for.
Mr David Jones
To pursue that point, the concerns that you have expressed about the impact of section 125 seem to be very narrow—that is, essentially, relating to the Government’s actions in Europe. Do you accept, therefore, that if section 125 were disapplied in its entirety, you would have far more latitude than the problem merits and you would effectively have a free-for-all?
Sir Jeremy Heywood
Are you talking about the civil service or the Government?
Mr David Jones
Both.
Sir Jeremy Heywood
The civil service’s activity is constrained by the civil service code and our duty of impartiality. That will be unchanging, regardless of whether section 125 is there or not.
Mr David Jones
So if section 125 is disapplied in its entirety, the Government effectively have a free hand to do whatever they want in relation to the referendum. You, of course, as civil servants, would be duty-bound to support the Government in whatever they sought to do.
Sir Jeremy Heywood
That is correct but the Government have made it crystal clear that they would not use that flexibility to campaign or to do things that are the province of the campaigns.
Mr David Jones
So the question is, why does it need that flexibility?
Sir Jeremy Heywood
As I have explained, from my perspective, the most important thing is to ensure that business as usual in Brussels is not constrained. I think the Ministers set out two reasons: first, the practical arguments, which I have been laying particular emphasis on; and, secondly, the issues of principle that a Government should be able to set out their position and explain that not just up to, but during that final period of 28 days. They have made it absolutely clear that they have no intention of campaigning or using Government resources for door drops and all the rest of it. That distinction has been drawn. In this sitting, we have not spent as much time on the second argument as on the first, but I feel that it is more of a political argument of principle, which you can ask the Ministers about later. From a civil service perspective, the issue that would most concern me is something that made it very difficult in those last 28 days to cope with a crisis in Brussels that required the full weight of the national interest to be applied or, indeed, routine business that we could not persuade our Parliaments to reschedule to a later stage. It is quite difficult for Brussels to reschedule these things because they have 28 countries and, at any one time, several countries could have different elections. As a matter of principle, they do not schedule business around other people’s elections, referendums and so on. It would be completely impossible for them to do so.
Mr David Jones
As head of the civil service, you have to distinguish between what constitutes everyday Government business and campaign-related activity. What sorts of challenges did that pose in the context of the Scottish referendum?
Sir Jeremy Heywood
The main issue was around the wording of the leaflets, which—I hasten to add—the Government paid for well before the last 28 days. At a stage in the campaign, the Government paid for a door drop. I spent quite a lot of time with officials and special advisers ensuring that that was a fact-based, evidence-based document, and not a campaigning document. That is our job. We do not want to see Government resources used for campaigning, propagandist purposes. I am happy to say that Ministers agreed with that.
Mr David Jones
And would you see any difference in the context of the EU referendum?
Sir Jeremy Heywood
We haven’t remotely started to think about what would happen in the period prior to the 28 days. But again, yes, I imagine that if I were called on for advice, my job would be to ensure that any literature produced was sober and balanced, that every assertion in it could be traced to a point of evidence and so on.
Mr David Jones
Even if section 125 had been completely disapplied?
Sir Jeremy Heywood
Section 125 only applies for the last 28 days.
Chair
Could you answer the question in relation to the last 28 days? What will be different between the EU referendum and the Scottish referendum that requires a different arrangement for purdah?
Sir Jeremy Heywood
Of course, on the Scottish one, section 125 did not actually apply to the UK Government, as I think previous witnesses said.
Chair
But it applied through the Edinburgh agreement.
Sir Jeremy Heywood
Indeed.
Chair
Therefore, I imagine that civil servants applied it as rigorously as they would have done had it been statutory.
Sir Jeremy Heywood
We absolutely did.
Chair
So what will be different in the EU referendum from the Scottish referendum?
Sir Jeremy Heywood
I tried to answer this a bit earlier. In the Europe context, we are not in control of the business, so we cannot guarantee that for the 28 days that we are talking about here, there will be no European business—
Chair
But the whole question of whether Scotland could be a member of the European Union after an independence vote was right at the heart of the campaign.
Sir Jeremy Heywood
It was not being discussed in Councils in Brussels.
Chair
Exactly. Are we expecting Britain’s membership of the European Union to be discussed in Council as part of the normal course of Government business?
Sir Jeremy Heywood
There could well be issues that come up in those Councils on which the UK has a very strong perspective, whether it is the Greek bail-out, banking regulation, migration—
Chair
Yes, but those things occurred during the Scottish referendum, and were as about as related to Scotland’s potential membership of the European Union as an independent country as they are to the question in this referendum. What is the substantive difference?
Sir Jeremy Heywood
I do not think any issue came up in the last 28 days in Brussels that really bore on that question. We certainly got no legal advice to that effect.
Kate Hoey
But in that last 28 days, what could possibly happen that could not wait 28 days?
Sir Jeremy Heywood
If we were in control of the timetable, I would agree with you, but the fact is that we are not. If there are 10, 11 or 12 Councils like it—it depends on when it is. If the 28 days falls in August, we might be okay, but if it happens at a busy period of European business, the Commission will meet every week, the European Parliament will meet for two weeks every four weeks, the ECJ will issue judgments several times a month and, above all, ministerial Councils will meet 10 or 12 times a month. The UK must be represented in those discussions. We cannot just leave an empty chair there.
Chair
Scotland has agriculture, fish, industrial policies and grants from the EU. Any of those things could have been discussed during the Scottish referendum.
Sir Jeremy Heywood
The legal risk is not regarded as—if it was, no one ever brought it to my attention.
Chair
Okay. You think there is a substantially different legal risk.
Q312Mr David Jones
Sir Jeremy, you have just explained that the EU tries to arrange its business in such a way that it does not affect domestic elections and referendums.
Sir Jeremy Heywood
No, I said exactly the opposite, actually. 313Mr David Jones: Really?
Sir Jeremy Heywood
I said it could not do that, because there are 28 countries. It could not possibly dodge and weave so that at no stage does it hold a Council when anyone has an election or a referendum. It just cannot do that, and it will not. Obviously, we will try. If we get into a situation in which we have to do things in that way, then we will try our very best with the Commission to prevent anything from being scheduled that could possibly impair the ability to have a referendum focused solely on the question. We are talking about legal risk here. All I can do is give you in good faith the fact that our leading counsel has warned us that there are severe legal risks.
Kelvin Hopkins
One suggestion that I made in a previous meeting was that if anything significant cropped up during the 28 days, a written statement could be submitted—just a factual statement of what had happened—and that just for that time, Ministers could abstain from making oral statements in the Chamber during which they might be questioned and have to put a strong political point of view. That would be one way of overcoming it for that short period of time, surely.
Chair
And indeed you could issue a press notice under section 125.
Sir Jeremy Heywood
I think a written statement probably would fall foul of section 125.
Chair
Not if it were a statement to Parliament, because that is privileged.
Sir Jeremy Heywood
Indeed. Absolutely. The issue is not so much reporting what is going on or being able to abstain if we can; it is what happens if we end up in that 28-day period with a decision that must be taken, because it has come to a vote.
Oliver Dowden
Just to clarify on that point, when Ministers are at the Council making decisions, what pieces of material do you fear might come out of that Council that would be subject to section 125?
Sir Jeremy Heywood
In some lawyers’ interpretations of section 125, the speech that the Minister makes—a lot of these Councils are televised. That will be making public by whatever means necessary.
Chair
Do you seriously believe that a court might serve an injunction to stop a Minister speaking in public at a council meeting?
Sir Jeremy Heywood
There is a real risk—I am saying that some lawyers believe oral statements of that sort could be caught. Others will say that a minutes statement would certainly be caught. There is legal uncertainty; that is what I am saying.
Oliver Dowden
I just wondered whether you had any further examples.
Sir Jeremy Heywood
We are saying that there is legal uncertainty. What constitutes a publication—making something public—is unclear. What is absolutely clear is that in a defined 28-day period, there could well be occasions when Government Ministers have to say things on the record that will be extremely interesting from the point of view of the referendum. We do not want to be in a position where Ministers are unable to defend the UK’s national interests on important dossiers in Brussels for fear of crossing that line. There is a legal uncertainty around that which, all other things being equal, as the head of the civil service and the Cabinet Secretary, I would like to see sorted out. That is one of the arguments. The other argument was the one about appropriateness and the issue of principle that the Prime Minister set out.
Chair
I want to summarise, to make sure that we have the right idea. We have given you every opportunity to give us examples of things that you think will be caught. You have given us some, although I think you will find that the Institute for Government, the Electoral Commission and Speaker’s Counsel do not agree with you. Many other representations received do not accept that this legal risk exists, but you are saying that there will be legal challenges left, right and centre.
Sir Jeremy Heywood
No, I am not saying that, nor do I think that the people you are citing necessarily disagree with me. Speaker’s Counsel, as far as I know, has not said there is zero legal risk. I am saying that there is a real legal risk. That is the legal advice we have had.
Chair
You said that there could be legal challenges left, right and centre.
Sir Jeremy Heywood
There could be. I have said that there could be.
Chair
There could be—okay.
Sir Jeremy Heywood
Mr Chairman, I am acknowledging that my position is one of considerable risk aversion. It would be extremely unfortunate if the last 28 days of a very, very important referendum were marked by even one legal challenge.
Chair
We know—Ministers tell us frequently—that legal advice from civil servants and, indeed, obtained by Whitehall tends to be very risk averse. Is this not just another example of very risk-averse legal advice?
Sir Jeremy Heywood
This is legal advice that, risk-averse though it may be, has been fully accepted by Ministers and properly stress-tested. I ask you to consider this: it is very important to avoid a situation where the last 28 days of a referendum are caught up in a legal quagmire, however small the risk. That is what we are trying to achieve. That is the point we are trying to make.
Chair
We have got the message. There is another clarification that I think is quite important. Whatever the statutory arrangements, you do not envisage civil servants supporting Ministers in the last 28 days to explain the outcome of the negotiations, the merits of the deal and why we should stay in the European Union, or the other side of the argument. You do not expect the machinery of government to be used in that way.
Sir Jeremy Heywood
It will be used for whatever the Government is permitted to do.
Chair
Earlier, you said that you want to maintain the impartiality of the civil service, particularly in the last 28 days, under the purdah regime.
Sir Jeremy Heywood
Correct, but if the Prime Minister is making a statement to Parliament, I do not believe it is wrong for the civil service to respond to his requests for briefing material on that subject.
Chair
I accept that, but you would not expect, for example, the Government’s communication service to be used in the last 28 days to promulgate the merits of the renegotiation.
Sir Jeremy Heywood
That depends on what is meant by the press notice exemption, for example.
Chair
By what?
Sir Jeremy Heywood
The press notice exemption. On the face of it, section 125 seems to allow press notices to be issued.
Chair
So there is an exemption for that under section 125.
Sir Jeremy Heywood
This is why our legal advisers say that this thing is a bit incoherent. On the face of it, parliamentary privilege allows parliamentary statements.
Chair
But you would not expect the civil service to be used to help to persuade voters in any way, directly or indirectly.
Sir Jeremy Heywood
No. Civil servants will not take part, either personally or as a civil service, in campaigning events or party events. They will only do, in support of Government, what Government itself is allowed to do.
Chair
But the Government will have to account to Parliament and to the public for the outcome of the negotiations. You seem to be saying that the civil service would be constrained from assisting Ministers in that explanation for the last 28 days, in the spirit of purdah.
Sir Jeremy Heywood
If Ministers are doing something that Parliament has agreed the Government can do, if they ask for our assistance, we will give it, but as individuals—
Chair
That suggests that you will take any instruction from Ministers, however, and that the overriding principle of your conduct of the civil service is to support the Government of the day, so if that compromises what was previously understood as the impartiality of the civil service through purdah that would be a secondary consideration.
Sir Jeremy Heywood
Not at all—equally important. We adhere at all times to the civil service code and the civil service management code, so civil servants will not take part in national political activity, and I do not believe that Ministers would ever ask us to do so.
Chair
Or support Ministers taking part in national political activity.
Sir Jeremy Heywood
If Ministers are operating as Government Ministers then we will support them; if they are operating as part of a campaign, or in their party roles, we do not support them.
Chair
I am sorry, but to be absolutely clear—do help me if I am not asking this very clearly—the machinery of government would not be available to Ministers to explain the outcome of the negotiations during the purdah period. You are saying that.
Sir Jeremy Heywood
No, I am not saying that—
Chair
Right. So you are saying that the machinery of government would be available.
Sir Jeremy Heywood
If the Prime Minister or another Minister spoke to Parliament, that is the clearest case—I think we are agreed. Section 125 or not, either way, there is nothing to stop the Prime Minister explaining his position on behalf of the Government to Parliament. In that case, if he asks for the civil service’s support, that support will be provided.
Chair
What about explaining to the public?
Sir Jeremy Heywood
That depends on whether section 125 is in place or not.
Chair
So section 125 will constrain the Government from explaining as Government the merits of the deal during the purdah period.
Sir Jeremy Heywood
On some legal interpretations, definitely section 125 would stop the Government outside Parliament.
Chair
Yet if Ministers after removing section 125 then instruct the government machinery to be used in that way, you would agree with that.
Sir Jeremy Heywood
No. The civil service code would come into play there—the civil service code and the civil service management code.
Chair
No, you said before that you would do whatever is permitted to do. What if section 125 were removed? In 1975, for example, when so many people would argue that there was a stronger tradition of the impartiality of the civil service—you might dispute that, but I am aware of what I am saying—the civil service was deeply involved with explaining the Government’s position right up to polling day, because there was no restriction and purdah did not exist in referendums. You are saying that you could go back to that position.
Sir Jeremy Heywood
Certainly not, no. In 1975, the civil service was much more involved in the campaigning, particularly the campaigning to stay in. It would not be at all possible nowadays.
Chair
But if you got rid of purdah, that would be permitted.
Sir Jeremy Heywood
We are not getting rid of purdah. No one is suggesting for a minute that we get rid of purdah.
Chair
But we can get rid of section 125.
Sir Jeremy Heywood
Let me repeat what I said, because I did not express it clearly enough. The civil service will do what Parliament has agreed the Government can do—we will support the Government in that—but of equal importance is that we will always adhere to the civil service code.
Chair
Am I missing something—some ambiguity?
Oliver Dowden
So, you are saying that if you are not subject to 125, the civil service code remains extant as it were.
Sir Jeremy Heywood
Correct.
Oliver Dowden
You are still subject to that, regardless of the decision that Parliament takes on 125.
Sir Jeremy Heywood
Correct. Exactly right.
Chair
But without section 125 Ministers would be permitted to use the machinery of government to do rather more than they can in conjunction with referendum campaigns than they can now or would be able to under section 125.
Sir Jeremy Heywood
In support of government, yes.
Chair
I am bound to say that I do not feel that you have been 100% clear about what you have said.
Sir Jeremy Heywood
Well, I am trying to be clear. What remains that is unclear?
Tom Tugendhat
Would it be fair to say that nothing changes except that it is not judiciable?
Chair
If it does not change anything, why not keep section 125?
Sir Jeremy Heywood
Section 125 does constrain what the Government can do and what they can therefore ask the civil service to do by way of support.
Tom Tugendhat
But ethically you are saying that it is not changing anything you do. All you are doing is imposing the potential for legal intervention through judicial review or—
Sir Jeremy Heywood
No, I am not making that point. Clearly, the difference between section 125 and not section 125 will have some effect on what the Government can do and therefore on what the civil service can do.
Chair
For example, during a general election, Ministers cannot do press releases from their Departments concerning the issues being discussed in the campaigns. How much do you think that will apply without section 125 during a referendum?
Sir Jeremy Heywood
Without section 125, Ministers could in theory not just speak in Parliament and issue press notices but undertake official events in which they speak in explanation of the Government’s position. If that were the position, the civil service could in principle support them in that.
Chair
So ministerial tours to discuss the outcome of the negotiations during the purdah period could be organised by private offices and supported by the taxpayer.
Sir Jeremy Heywood
If it were a Government activity that Parliament had agreed the Government can do, it would be wrong for me to say to the civil service, “You can’t support that sort of thing.”
Chair
You are just confirming that you would approve the government machinery being used for exactly what purdah intends it not to be used for.
Sir Jeremy Heywood
No, I haven’t.
Chair
Yes you have.
Sir Jeremy Heywood
If Parliament has agreed that the Government can do certain activities, the civil service’s job is to support the elected Government, and that is what we will do.
Mr David Jones
If section 125 were to be disapplied in its entirety, would the civil service code preclude the Government Communication Service, for example, issuing press notices supportive of a yes vote, if that were the Government’s position?
Sir Jeremy Heywood
The Government Communication Service does not act independently of the Government. If a Government Minister is allowed by Parliament to issue press releases in support of a Government position, it would be wrong of the civil service to say, “Sorry, Parliament has agreed that you can do this, but we’re not going to do it.”
Chair
That would be a breach of purdah.
Sir Jeremy Heywood
A breach of purdah would be outwith what has been agreed the Government can do. On a personal basis, it constrains what civil servants can do as individuals.
Mr David Jones
But nevertheless the Government Communication Service could actually issue streams of press notices supportive of a yes vote.
Sir Jeremy Heywood
Government Ministers have made it absolutely clear that they do not intend to campaign during that period.
Mr David Jones
But if the Government Minister changed his mind, the Government Communication Service, in those circumstances, would be obliged to issue those press notices.
Sir Jeremy Heywood
I cannot do anything other than repeat what I have already said. If Parliament, at the end of the debate about whether section 125 should be amended, disapplied or whatever, concludes that the Government can do certain activities, it is the civil service’s role to support the elected Government. Individual civil servants—
Chair
You have just confirmed to us that Parliament has a very important role in creating laws to constrain Ministers from what they can do during purdah.
Sir Jeremy Heywood
Of course. Individual civil servants are then subject to the rigours of the civil service code and can take no part personally in national political campaigns and so on.
Oliver Dowden
Just to clarify, what is the restriction provided by the civil service code, absent section 125?
Sir Jeremy Heywood
We have to adhere to the values of impartiality in this context and take no part in national political activity as individual civil servants.
Chair
But if a civil servant is being instructed by a Minister to issue a press release that effectively supports the yes campaign—
Sir Jeremy Heywood
If Parliament has allowed the Government to do that activity—
Chair
That seems to be a very good reason not to change the law.
Sir Jeremy Heywood
Well, what are you suggesting? That the civil service should say, “Parliament has agreed that, the Government has asked us to do it, but we are not going to do it”? That is not a position for the civil service to take. We do not operate independently of the elected Government.
Chair
We accept that, but it does suggest that the civil service on its own will not keep purdah. It will not make Ministers keep purdah. You have just confirmed that, absent section 125, civil servants would obey instructions from Ministers to issue press releases that could be construed to be supporting a yes vote or a no vote.
Sir Jeremy Heywood
If that is what Parliament has allowed Ministers to do, yes.
Chair
Isn’t that rather disappointing?
Sir Jeremy Heywood
What the civil service code does is to say that individual civil servants cannot themselves take part in political campaigning.
Chair
I understand what you are saying. So the code is no protection for purdah.
Kate Hoey
Sir Jeremy, can you honestly tell us that you feel really comfortable about the discussion about removing section 125? Do you feel that would be a sensible thing to do, given the fear and worry that there will be bias within Government and the civil service, despite all the codes?